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Residential Picketing Case Ends in Acquittals

New Salt Lake City ordinance questioned.

Activists picket 100 feet from the east bench home of a medical researcher on May 2.

When the Salt Lake City Council approved an ordinance in July 2007 that restricts residential picketing, some hoped that animal-rights activists would finally leave in peace the homes of University of Utah researchers who use animals in their experiments. That didn’t happen. Instead, the activists tried to picket within the limits of the new restrictions, but wound up cited anyway.

The activists had varying success in court. In the first cases in which juries grappled with the new ordinance, one jury convicted four activists, another ended in a mistrial and another jury acquitted five activists.

Defense attorneys familiar with the cases say those mixed jury results suggest there’s a lack of clarity in the ordinance, but Salt Lake City Prosecutor Sim Gill disagrees, saying mixed results are natural in a jury system. “Just because we lose does not mean the law, on its face, is invalid,” he says.

The ordinance has always been controversial—the council approved it on a 5-2 vote—because it balances two important values: free speech versus the sanctity of the home.

The targeted residential-picketing ordinance makes it a class B misdemeanor—maximum penalty of six months in jail and a $1,000 fine—to picket within 100 feet of a targeted residence. It was first enforced on April 28, 2008, when animal rights activists picketed in the vicinity of researcher Alessandra Angelucci’s home on Salt Lake City’s East Bench.

The demonstrators waved signs and yelled chants while walking up Angelucci’s block and then down the other side. No one disputes that they were picketing. The central question regards the meaning of the word “target.” Acquitted picketer Thomas Risk says the activists “absolutely wanted to work within the law.” They walked the circuit, he said, so as not to “target” Angelucci’s home.

Five individuals took pleas in abeyance, meaning they admitted their guilt but will eventually have the convictions removed from their records.

Those convicted by a jury are appealing to the 3rd District Court. Five others were acquitted April 21 after a two-day trial. The trials were separated only to make them more manageable.

Neither attorneys on the case, the defendants, nor City Weekly were able to contact jurors on the cases, so their reasoning is open to speculation. Because juries who heard basically the same set of facts came to opposite conclusions, there’s plenty of speculation and curiosity about what it means. Picketer Tom Risk believes the acquittal was the jury’s way of condemning the ordinance. “It’s kind of a clunky law. I don’t think it’s very well defined,” he said. “I think that was proven in court, and I think the jurors saw and understood that the law doesn’t necessarily do what it needs to do, or what the city intended.”

The purpose of the ordinance is stated clearly: Residents are “captive audiences” to residential protests and may experience “emotional disturbance and distress,” which “has the potential to incite breaches of the peace.” U.S. Supreme Court case law, often prompted by crackdowns on antiabortion protesters over the past two decades, prevents an outright ban on residential protesting, however.

Gill, who can’t speak specifically about the cases because of the appeals, spoke generally about the ordinance. “We can live in a society of competing visions and competing voices, but what we don’t want to do is create an undue advantage in an abusive way where one is abusive to the other.”

One defense attorney in the trial that ended in acquittal, Neal Hamilton, of the Salt Lake City´s Legal Defenders Association (LDA), says he wouldn’t want protesters at his house, either, and believes the intent of the law is valid. But, “there were so many reasons these kids were not guilty.” Like it or not, he says, “The sanctity of the home is important, but it is secondary to the First Amendment. It’s a tough reality … but it’s the society we’ve chosen to be governed by. Free speech may be inconvenient.”

Defense Attorney Trenton Ricks, also of the LDA, agrees that the law is unclear. He says noise, trespassing, burglary and assault laws indirectly restrict how one can picket.

“Is this ordinance really doing too much more?” And since free speech is so reliably protected by the U.S. Supreme Court, he said there’s very little legal territory for cities to further restrict demonstrations.

Defense attorneys presented evidence that the activists tried to contact the Salt Lake City Mayor’s Office during the Rocky Anderson administration to discuss how to picket in residential areas legally, but never got a meeting. They spoke with activists in other cities that have similar residential picketing laws and even had discussions with Salt Lake City Police officers at other residential demonstrations that occurred after the ordinance was enacted. They even had an attorney present at the demonstration to act as legal observer.

Indeed, the activists almost surely knew more about the law than the police officers who cited them. “The arresting officer didn’t know about this ordinance until they were briefed on it the afternoon before,” private defense attorney James Valdez said. “We asked [police officers] what would be a legal protest or picket, and they couldn’t tell us.”

Reached at her office at the university, Angelucci declined to comment for this story.

The appeals could impact more than just Salt Lake City. Salt Lake and Morgan counties installed similar ordinances, as did other cities, also in reaction to animal-rights demonstrations. The appeals brought by the convicted activists could lead to a ruling that the laws are unconstitutional.

L. Monte Sleight is one of the attorneys appealing the convictions. He says he will challenge the constitutionality, which he may be able to do only if the activists are convicted again in district court.

“I think [the Salt Lake City Council’s] goal was to find a way to remove the possibility of protesting in a residential area,” Sleight says, “and, quite frankly, personally, I find that that offends the First Amendment.”

For now, the future of residential picketing is uncertain. About 10 activists protested in Angelucci’s neighborhood May 2 and were ordered to leave for disturbing the peace—but were not cited by police. They’re consulting civil-rights attorney Brian Barnard and may file a federal civil-rights lawsuit for an unlawful order.

Gill is offering no legal advice on how the activists can continue their demonstrations and comply with the law—“my job is not to give legal advice,” he says.

Hamilton said going to trial was a way for the activists to demand answers, but those answers are muddled.

“[Going to trial] is demanding an answer to ‘Is this legal or isn’t it’? I think they’re still struggling with that.”